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Medical Malpractice in Hand Surgery

  • Nick D. Pappas
    Affiliations
    Greenville Hospital System/Steadman Hawkins Clinic of the Carolinas, Greenville, SC; and the Office of Risk and Insurance Management and Vanderbilt Orthopaedic Institute, Vanderbilt University Medical Center, Nashville, TN
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  • Diane Moat
    Affiliations
    Greenville Hospital System/Steadman Hawkins Clinic of the Carolinas, Greenville, SC; and the Office of Risk and Insurance Management and Vanderbilt Orthopaedic Institute, Vanderbilt University Medical Center, Nashville, TN
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  • Donald H. Lee
    Correspondence
    Corresponding author: Donald H. Lee, MD, Vanderbilt Orthopaedic Institute, Vanderbilt University Medical Center, 1215 21st Avenue South, Ste. 3200, Nashville, TN 37232
    Affiliations
    Greenville Hospital System/Steadman Hawkins Clinic of the Carolinas, Greenville, SC; and the Office of Risk and Insurance Management and Vanderbilt Orthopaedic Institute, Vanderbilt University Medical Center, Nashville, TN
    Search for articles by this author
      The rise in medical malpractice claims over the past few decades has altered physicians’ practice patterns and has had a considerable financial impact on the medical community as a whole. While numerous studies have analyzed the content and effect of these claims, only a handful of articles have addressed specifically the issue of medical malpractice in hand surgery. This article outlines the available literature on malpractice in hand surgery, offers guidance to hand surgeons on managing medical malpractice claims, and discusses preventative measures they might take to limit such claims from being filed in the future. We conclude that the key measures one can take to protecting oneself legally are knowing and abiding by the standard of care, keeping patients informed and developing good relationships with them, and meticulously documenting. Although some malpractice claims are unavoidable, we believe that one can limit his or her exposure to them by incorporating these measures into their respective practices.

      Key words

      With an increasingly litigious society, physicians in all areas of medicine are faced with growing concerns over the rise in medical malpractice claims.
      • Sethi M.K.
      • Obremskey W.T.
      • Natividad H.
      • Mir H.R.
      • Jahangir A.A.
      Incidence and costs of defensive medicine among orthopedic surgeons in the United States: a national survey study.
      • Studdert D.M.
      • Mello M.M.
      • Sage W.M.
      • et al.
      Defensive medicine among high-risk specialist physicians in a volatile malpractice environment.
      A few recently published articles have analyzed these claims and their overall financial impact on the medical community.
      • Studdert D.M.
      • Mello M.M.
      • Gawande A.A.
      • et al.
      Claims, errors, and compensation payments in medical malpractice litigation.
      • Jena A.B.
      • Seabury S.
      • Lakdawalla D.
      • Chandra A.
      Malpractice risk according to physician specialty.
      However, few articles specifically address the issue of medical malpractice in hand surgery.
      • Atrey A.
      • Gupte C.M.
      • Corbett S.A.
      Review of successful litigation against English health trusts in the treatment of adults with orthopaedic pathology: clinical governance lessons learned.
      The purposes of this article are to review the available literature on malpractice in hand surgery, offer guidance to hand surgeons on managing medical malpractice claims, and outline preventative measures they might take to limit such claims from being filed in the future.

      The Literature on Malpractice in Hand Surgery

      The literature on medical malpractice in hand surgery is sparse, especially from the United States (US). In general, malpractice insurers of major medical institutions in the US are reluctant to divulge detailed information about the nature of settlements and the jury verdicts with which their clients have been involved. One may speculate that such reluctance stems from these insurers' desire to protect their client's privacy and prevent malpractice prosecutors from learning the dollar figures involved in these types of cases. As a result, our knowledge regarding the current status of medical malpractice in hand surgery is limited. However, our partners in Europe have been much more forthright in disclosing information related to medical malpractice claims and have produced several recent studies that shed light on current hand surgery litigation. In a 2010 study from Britain, Kahn and Giddins
      • Khan I.H.
      • Giddins G.
      Analysis of NHSLA claims in hand and wrist surgery.
      analyzed 160 claims of medical negligence pertaining to hand and wrist surgery between 1995 and 2001 as provided by the United Kingdom National Health Society Litigation Authority. They discovered that claims had increased over that time and were most commonly related to surgical errors (56%). The treatment of wrist fractures and carpal tunnel syndrome accounted for the largest percentage of claims, at 48% and 22%, respectively. The most common cause of litigation related to carpal tunnel syndrome was median nerve laceration at the time of surgery (78%). Another common cause of litigation was missed injuries in the emergency room; unrecognized carpometacarpal fracture-dislocations of the little and ring fingers were common culprits.
      • Hodgson P.D.
      • Shewring D.J.
      The “metacarpal cascade lines”: use in the diagnosis of dislocations of the carpometacarpal joints.
      There were no claims involved complex hand surgical procedures.
      A study by Atrey et al
      • Atrey A.
      • Gupte C.M.
      • Corbett S.A.
      Review of successful litigation against English health trusts in the treatment of adults with orthopaedic pathology: clinical governance lessons learned.
      in 2010 reviewed 2,312 litigation claims in the United Kingdom from 2000 to 2006 against all orthopedic surgeons by also querying the United Kingdom National Health Society Litigation Authority database. They performed a subgroup analysis on hand and wrist surgery. In total, 69 cases were related to hand and wrist surgery, with 39 specifically involving laceration of the median nerve during carpal tunnel release.
      A European study from The Netherlands published in 2010 by Mahdavian Delavary et al
      • Mahdavian Delavary B.
      • Cremers J.E.
      • Ritt M.J.
      Hand and wrist malpractice claims in The Netherlands: 1993-2008.
      analyzed all hand and wrist malpractice claims in that country between 1993 and 2007. They collected data on 743 hand and wrist claims that had been handled by the largest malpractice insurer in their country, a corporation named MediRisk, which covers over 90% of the hospitals. In The Netherlands, there is a vast shortage of fellowship-trained hand surgeons; only 25 such surgeons service an estimated 16 million people. As a result, physicians who practice largely general surgery and are not specifically trained in hand surgery are often called upon to treat basic hand conditions. This study found that general surgeons who occasionally treat hand conditions were the most commonly involved in litigation pertaining to hand surgery. The most common hand injury cited in these litigation claims was wrist fracture.
      In the lone US-based study on hand surgery litigation, Bastidas et al
      • Bastidas N.
      • Cassidy L.
      • Hoffman L.
      • Sharma S.
      A single-institution experience of hand surgery litigation in a major replantation center.
      analyzed all malpractice claims from 2001 to 2009 involving finger and hand replantations performed at Bellevue Hospital Medical Center, New York. Of the 23 claims filed, only 1 achieved a small financial settlement. The others were dropped. The majority of claims (56.5%) stemmed from the surgeon's decision not to replant an amputated digit. Based on the repeat failure of these claims to substantiate any sort of judgment in the favor of the plaintiff, the authors concluded that the legal system supports hand surgeons and institutions that treat complex hand injuries.

      Handling Malpractice Claims

      Given the increasingly litigious society in which we live, a large percentage of hand surgeons in the US will face a malpractice claim over the course of their careers. A questionnaire study performed by Kessler
      • Kessler F.B.
      Hand surgery and the medical liability issue.
      showed that nearly 40% of the US membership of the American Society for Surgery of the Hand has been sued at some point for treatment of a hand condition. If you should ever receive notification of a malpractice claim, immediately consult your malpractice carrier and review all aspects of the claim with them in detail (Fig. 1). They will typically provide you with an attorney to assist in the handling of your claim. If you and your attorney are confident that the claim has no merit, you may be successful in getting it dismissed at an early stage.
      • Studdert D.M.
      • Mello M.M.
      • Gawande A.A.
      • et al.
      Claims, errors, and compensation payments in medical malpractice litigation.
      A recent study by Studdert et al
      • Studdert D.M.
      • Mello M.M.
      • Gawande A.A.
      • et al.
      Claims, errors, and compensation payments in medical malpractice litigation.
      showed that approximately one third of all medical malpractice claims hold no merit. Frequently, the plaintiff struggles to show sufficient evidence of malpractice through medical expert testimony, and dismissals are often granted.
      • Farber H.S.
      • White M.J.
      A comparison of formal and informal dispute resolution in medical malpractice.
      Figure thumbnail gr1
      Figure 1Key steps one might take in handling a medical malpractice claim.
      However, if the case does not get dismissed, a process known as discovery will begin. This process includes reviewing medical records in detail, obtaining expert witnesses, and taking depositions. At any time during this process, the case may still be dismissed or settled. At this point, a trial date will often be set. Cases are commonly settled before going to trial because of the costs and the risk of going to trial for all parties involved.
      • Studdert D.M.
      • Mello M.M.
      • Gawande A.A.
      • et al.
      Claims, errors, and compensation payments in medical malpractice litigation.
      In the Kessler
      • Kessler F.B.
      Hand surgery and the medical liability issue.
      study, over half of the 300 malpractice cases reviewed were either dropper or dismissed, one third were settled, and less than 10% went to trial.
      If a trial does occur, the verdict often hinges on your credibility as the defendant, your documentation, and whether the jury believes the plaintiff's versus your (ie, the defendant's) expert witness. A strong, well-respected hand surgeon serving as an expert witness and defending your treatment decisions as part of the standard of care can make the difference between winning and losing your case.
      • Taragin M.I.
      • Willett L.R.
      • Wilczek A.P.
      • Trout R.
      • Carson J.L.
      The influence of standard of care and severity of injury on the resolution of medical malpractice claims.

      Staying Out of Trouble

      The first precaution one can take to stay out of trouble with medical malpractice is to avoid blatant mistakes such as wrong site surgeries (Fig. 2).
      • O'Dell D.M.
      Avoiding medical negligence claims: a former plaintiffs' attorney and physician explains why practicing defensive medicine doesn't work—and tells you what does.
      These can happen easily in hand surgery, especially with procedures such as trigger finger releases that may involve multiple digits, and are generally indefensible. Next, be honest with your patients and keep them informed. Patients are inclined to sue for malpractice if they have an outcome that was not properly explained to them in the surgical consent process.
      • Ahamed S.
      • Haas G.
      Analysis of lawsuits against general surgeons in Connecticut during the years 1985 to 1990.
      If an adverse event may happen during a surgery (eg, injury to the median nerve during a carpal tunnel release), you should make patients aware of it, no matter how unlikely it is to occur. Third, try your best to develop a strong relationship with patients and their families. Although it may be difficult with some patients, it is well known that patients who have a good relationship with their physicians are less likely to pursue litigation for a negative outcome. Finally, document meticulously.
      • Bastidas N.
      • Cassidy L.
      • Hoffman L.
      • Sharma S.
      A single-institution experience of hand surgery litigation in a major replantation center.
      As the adage goes, “The lawyers don't try you, they try the medical record.” If you did not document it, then it did not happen.
      Figure thumbnail gr2
      Figure 2Preventative measures to avoid medical malpractice claims.
      Although hand surgeons cannot control the legal climate in the country (or state) in which they practice, they can protect themselves by practicing good and safe medicine, particularly in the treatment of common problems such as carpal tunnel syndrome and wrist fractures, which seem to generate the most litigation. Knowing and abiding by the standard of care, keeping patients informed and developing good relationships with them, and documenting meticulously are some of the key steps one can take to help spend less time in the courtroom and more time in the operating room.

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